Opinion
B299789
06-12-2020
THE PEOPLE, Plaintiff and Respondent, v. GERALD LEE MILLER, Defendant and Appellant.
Kathy R. Moreno, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA037989) APPEAL from a judgment of the Superior Court of Los Angeles County, Connie R. Quinones, Judge. Affirmed. Kathy R. Moreno, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
INTRODUCTION
Appellant Gerald Lee Miller was convicted of attempted murder, robbery, and other crimes in 1998. In 2019, he petitioned the trial court for resentencing under Penal Code section 1170.95. The trial court denied his petition, finding that appellant's convictions were not eligible for resentencing under section 1170.95. Appellant appealed. We have conducted an independent examination of the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), and conclude no arguable issues exist. We therefore affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
We granted appellant's request for judicial notice of our previous decision in this case, People v. Miller (June 27, 2000, B127059) [nonpub.opn.]. According to that opinion, following a crime spree in June 1997, appellant was convicted by jury of two counts of attempted murder (§§ 187, subd. (a), 664), one count of attempted second degree robbery (§§ 211, 664), four counts of second degree robbery (§ 211), one count of assault with a firearm (§ 245, subd. (a)(2)), and three counts of possession of a firearm by a felon (former § 12021, subd. (a)(1)). The jury also found that appellant used a firearm in seven counts, inflicted great bodily injury in three counts, and had served six prior prison terms. Appellant was sentenced to a total term of 42 years. We modified the judgment by striking enhancements for two prison priors and for great bodily injury on one count, and otherwise affirmed the judgment.
In June 2019, appellant filed a petition for resentencing under section 1170.95. That statute, effective January 1, 2019, allows a "person convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition . . . to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts" under certain conditions. (§ 1170.95, subd. (a).) The provisions of section 1170.95 do not apply to attempted murder. (See People v. Lopez (2019) 38 Cal.App.5th 1087, 1103-1105 [rev. granted Nov. 13, 2019, S258175].)
Appellant checked the box on the form stating, "At trial, I was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine." The trial court denied the petition, finding that based on appellant's convictions, "[r]elief pursuant to Penal Code section 1170.95 is not applicable, and [appellant] does not qualify for resentencing." Appellant timely appealed.
On appeal, appellant's appointed counsel filed a brief requesting that we independently review the record for error. (Wende, supra, 25 Cal.3d at p. 441.) We directed counsel to send the record and a copy of the brief to appellant, and notified appellant of his right to respond within 30 days. We have received no response.
Whether the process contemplated by Wende and Anders v. California (1967) 386 U.S. 738 applies to an appeal from an order denying a petition for resentencing under section 1170.95 appears to be an open question. In the absence of contrary controlling authority, we adhere to the Wende procedure in this case. --------
DISCUSSION
We have examined the entire record, and are satisfied no arguable issues exist in the appeal before us. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 110; Wende, supra, 25 Cal.3d at p. 443.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: MANELLA, P. J. WILLHITE, J.